Crackdown on War Profiteering at Tribunals: Court acts to eliminate extortion of fees from appointed counsel

On November 2, 2001, Zoran Zigic was convicted of four counts of war crimes and crimes against humanity for torture, beating and murder of Bosnian Muslim prisoners in Omarska, Trnopolje and Keraterm camps in 1992. His treatment of prisoners was sadistic, brutal and gratuitously violent. Zigic was not an employee of the camps, but guards granted him entry solely to beat and abuse prisoners.

Just as the war had provided him an opportunity to act out his brutal instincts, so indictment by the International Criminal Tribunal for the former Yugoslavia (ICTY) six years later gave him the opportunity to enrich himself and his family by abusing a system set up to insure that every accused has adequate and equal access to justice. His actions, and those of other accused and their defense counsel, have tarnished the image of the ICTY just as they tarnished the reputation of their countries. In doing so, they struck another blow at those they have so egregiously harmed, the dead and the survivors. But the ICTY, like its sister institution in Rwanda, the ICTR, is striking back.

When Zoran Zigic arrived at the ICTY in April 1998, he declared that he lacked the means to hire counsel to defend himself. A trial before an international tribunal on serious and complex charges with four co-defendants necessarily requires considerable resources, not generally available to a petty criminal and former taxi driver. In such cases, the ICTY assigns counsel and pays counsel fees and necessary and reasonable expenses for a defense. In Zigic's case, that cost nearly a million and a half dollars over a four year period. Through a practice known as 'fee splitting,' his lawyers funneled about $175,000.00 to him and his family, enabling them to purchase 2 apartments, a business, 3 vehicles, 3 laptop computers, a nearly $35,000.00 renovation of his parents' home and travel for family members to The Hague costing $18,000.00. ['Fee-splitting' is where counsel pays a portion of his or her fee to the client or the client's family. Sometimes these are cash payments; others involve expensive gifts. Most instances appear to be initiated by accused in a form of extortion requiring defense counsel to kick back a certain percentage of their fee or face an application for their removal.]

The ICTY Registrar set forth the above facts in a recent decision to 'withdraw the assignment of counsel to the accused [Zigic] and to discontinue the provision of legal aid to the accused.' It is the first major decision at the ICTY following two United Nations' reports on internal investigations of fee splitting arrangements at both the ICTY and ICTR by the UN's Office of Internal Oversight Services (OIOS). The two reports found credible evidence of the practice and recommended providing the Tribunals with sufficient resources to investigate and monitor the payment of indigent fees, as well as the accuseds' financial status. The first report, issued in February 2001, ended with a list of sixteen recommendations to assist the Tribunals in eliminating fee-splitting and related abuses. The follow up report on March 27, 2002, noted both Tribunals had made substantial progress in implementing the recommendations, but suggested the investigation continue.

The ICTY recently completed substantial amendments to the Code of Professional Conduct for Defense Counsel, extending it from 23 to 50 Articles. Following recommendations of the UN report, it includes an explicit prohibition of fee-splitting as well as a disciplinary procedure for defense counsel. According to the April 23, 2002 UN report, Code amendments will also include an obligation for defense counsel to promptly report any fee splitting arrangements and a provision that such reporting is not a breach of a lawyer's duty of confidentiality. While the Code already contains authorization for the Registrar to 'inquire into his [the accused's or suspect's] means, request the gathering of any information, hear the suspect or accused, consider any representation, or request the production of any documents likely to verify the request [for assignment of counsel],' it is likely to expand on this power as well as more clearly define 'indigence' and 'lacking the means to remunerate counsel.' The actual text of the changes will be available in a few weeks.

The judges of the ICTY at their recent plenary session also decided to amend the Rules of Procedure and Evidence by requiring all defense counsel who wish to practice before the ICTY to be a member of an association of defense counsel. When the ICTY recognizes such an association, the rule will come into effect. Plans for organizing one are underway. In a recent press release, the ICTY judges and Registrar indicated that training and monitoring of professional conduct should be among the association's objectives. Rumors of fee-splitting and similar abuses have been around for some time -- at both Tribunals. But they are hard to prove. When the OIOS made its first investigation, all but one detainee at the ICTY refused to meet with investigators, some reportedly replying, 'We're not that stupid!' Defense counsel were only a little more forthcoming, willing to talk with investigators but not to provide much information. As a result, the investigation concluded, 'the review at the International Criminal Tribunal for the former Yugoslavia did not produce tangible evidence of fee-splitting.' Nevertheless, it also found it could not rule out the existence of such arrangements, and recommended a further investigation. That investigation revealed little more on actual instances of fee-splitting at the ICTY but it did lead to the Zigic case where the ICTY's Registrar withdrew authorization for counsel and for indigent status.

In addition to stopping and preventing abuses, justice demands recovery of funds from accused and investigation of implicated lawyers by their state professional associations, until such time as a tribunal defense lawyers association, complete with disciplinary mechanism, is operational. In the Zigic case, the Registrar reserved the right to file for recovery of funds and to conduct further investigations into the conduct of his defense team members, past and present.

The enrichment of convicted (and accused) war criminals through abuse of institutions designed to hold them accountable for heinous crimes rightly outrages the conscience. The fact that a system has been abused, however, should not lead to shutting down the system, as some have suggested, -- neither the system to provide counsel for indigent accused nor the war crimes tribunals themselves. The United Nations responded correctly when allegations of fee splitting first came to its attention -- by ordering investigations, making recommendations for change, assisting the tribunals in implementing those changes and continuing to monitor the situation. Similarly, the ICTY and ICTR have cooperated fully with the investigations and moved to implement reforms. They deserve our watchful support.